Federal Constitution

Fundamental liberties are rights and freedoms that we have as human beings. Some fundamental liberties are set out in the Constitution. Because these rights and freedoms are set out in the Constitution, they are said to be ‘guaranteed’ and cannot be taken away from us unless the Constitution itself allows it.

The Fundamental Liberties guaranteed under the Constitution:

Article 5 – Right to life and personal liberty

Every person has a right to life and liberty. A person’s life or personal liberty cannot be taken away unless it is in accordance with law. The courts have said that the right to life includes a right to livelihood and quality of life, while the right to liberty includes the right to privacy.

A person who is arrested or detained:-

● must be informed as soon as possible of the grounds of the arrest;● has the right to consult and be defended by a lawyer of his/her choice (this is known as ‘access to legal representation’); and● must be brought before a magistrate within 24 hours and cannot be detained further unless it is with the authority of the magistrate, known as a ‘remand order’.

If a person has not been detained according to law, the courts will order that the person is brought before the court to be released. This is known as habeas corpus. You will find information on your rights when you are arrested by the police in the Police and Your Basic Rights leaflet published by the Bar Council and can be found at www.malaysianbar.org.

Article 6 – No slavery or forced labour

No one can be made a slave or forced to work. However, Parliament may make laws to require Malaysians to provide compulsory national service. Work or service required from a person who is convicted of a crime is not considered forced labour.

A person cannot be punished for something which at the time when it was done was not an offence. For example, if a law is passed to make it illegal to drive past a speed limit of 80km/h, a person driving past that speed limit before the law is passed cannot be punished. This is known as the prohibition against retrospective criminal laws.

If the punishment for a crime is increased, a person who committed the crime before the punishment was increased cannot be given that increased punishment. For example, if the law is amended to change the punishment for breaking a speed limit from a fine to a prison sentence, a person breaking the speed limit before the law is amended cannot be punished with a prison sentence.

A person who has been acquitted or convicted of an offence shall not be tried again for the same offence, unless the conviction or acquittal is quashed (set aside) and a retrial is ordered.

Article 8 – Equality

All persons are equal before the law and entitled to equal protection of the law.

Unless the Constitution says so, citizens cannot be discriminated only because of their religion, race, descent, place of birth or gender:-

● under any law;● in the employment by a public authority; or● how any law is applied relating to property or any trade, business, profession, vocation or employment.

However, Article 8 does not apply to:-

● laws regulating personal law;● laws relating to office or any employment connected to any religion or religious institutions;● laws for the protection, well-being or advancement or the reservation of a quota of employment in the public service for the Orang Asli of Peninsula Malaysia;● laws that say that a person to be elected or appointed into a State authority, and any person who can vote in such elections, must reside in that State;● laws in the Constitution of a State that were made before Merdeka Day (31 August 1957); and● laws restricting enlistment in the Malay Regiment to Malays.

Article 9 – Freedom of movement

A Malaysian citizen cannot be banished or excluded from the country. In general, every citizen has the right to move freely and stay in any part of the country except where any law is passed relating to the security of the country, public order, public health or the punishment of offenders.

The special position of Sabah and Sarawak compared to other States also allows for laws to be made to control who can enter and stay in Sabah and Sarawak. We talk about the special interests and safeguards for Sabah and Sarawak in The Rakyat Guides 7: Sabah and Sarawak.

Article 10 – Freedom of speech, assembly and association

Citizens have freedom of speech, assembly and association but these freedoms may be restricted by Parliament for reasons permitted by the Constitution. The Courts have said Parliament may only impose restrictions where they are reasonably necessary.

1. Freedom of speech and expression

Every citizen has the right to freedom of speech and expression. However, Parliament may make laws to restrict this right if they are necessary or expedient in the interest of:-

● the security of Malaysia;● friendly relations with other countries;● public order or morality; or● the protection of the privileges of Parliament or any State legislative assembly or to provide against contempt of court, defamation or incitement to any offence.

In imposing restrictions on the freedom of speech and expression in the interest of the security of the country or public order, Parliament may pass laws prohibiting the questioning of matters relating to citizenship, the national language, the special position of Malays and the natives of Sabah and Sarawak and sovereignty of the Rulers.

However, it is not illegal to comment on the implementation of these matters.

2. Right to assemble peaceably and to form associations

All citizens have the right to assemble peaceably and without arms and to form associations. However, Parliament may make laws to restrict these rights if they are necessary or expedient in the interest of:-

● the security of the country;● public order; or● morality (only for the right to form associations)

3. Parliament can also make laws to restrict the right to form associations in relation to labour and education.

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The Warsaw Declaration (2000)

The will of the people shall be the basis of the authority of government, as expressed by the exercise of the right and civic duties of citizens to choose their representatives through regular, free and fair elections with universal and equal suffrage, open to multiple parties, conducted by secret ballot,monitored by independent electoral authorities,and free of fraud and intimidation.